On May
22, 2017 defendant Arthur Lopez, Jr. filed a petition under
the All Writs Act, 28 U.S.C. §1651, for a “Writ of
Audita Querela.” (Dkt. No. 532). He argues
that, at sentencing, the court did not make the findings
required by Amendment 790 of the Sentencing Guidelines, and
asks the court to correct his sentence. Id. at 15.
He repeatedly asserts that the court should not
recharacterize his motion as a motion for a sentence
reduction under 18 U.S.C. §3582, [1] or as a civil
motion to vacate, correct or set aside his sentence under 28
U.S.C. §2255. Id. at 5, 7-9. He also asks the
court to appoint counsel to represent him in these
post-conviction proceedings. Id. at 16.

On June
22, 2012, Judge Charles N. Clevert, Jr. sentenced the
defendant to serve forty years in custody after his
conviction for conspiracy to distribute controlled
substances. Dkt. No. 475. The court entered judgment on July
6, 2012. Dkt. No. 477. The defendant did not appeal his
conviction or sentence.

Now,
almost five years post-judgment, the defendant argues that
Judge Clevert erred in imposing that sentence, because he did
not make any particularized findings on the record about
relevant conduct. Dkt. No. 532 at 2-3. The defendant argues
that that he was convicted of violating 21 U.S.C.
§§841(a)(1) and (b)(1)(A) (conspiracy to possess
with intent to distribute five kilograms or more of heroin),
but that Judge Clevert determined his base offense level by
cross-referencing §2A1.1, the first-degree murder
guideline. Id. The defendant argues that Amendment
790 to the Sentencing Guidelines required Judge Clevert to
make particularized findings about that relevant conduct, and
that Judge Clevert did not do so. Id. at 3.

“[A]ny
post-judgment motion in a criminal proceeding that fits the
description of a motion to vacate, set aside, or correct a
sentence set forth in the first paragraph of section 2255
should be treated as a section 2255 motion.” United
States v. Carraway, 478 F.3d 845, 848 (7th Cir. 2007).
The defendant's motion falls within the scope of
§2255, which reads:

A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.

Because
the defendant's motion asks the court to “CORRECT
the Original Criminal Sentencing procedure in which this
Court failed to make particularized findings under the
THREE-STEP ANALYSIS of § 1B1.3(a)(1)(B) that have
currently been CLARIFIED under AMENDMENT 790, ” dkt.
no. 532 at 15, it falls within the ambit of §2255.

Why,
then, is the defendant so insistent that his motion is
not a §2255 petition? Why does he argue,
several times, that the court should not characterize the
petition as a § 2255 petition, and why does he insist on
calling the petition a petition for a writ of audita
querela? The court suspects it is because of the
limitations period on §2255 petitions. Section
§2255(f) imposes a one-year statute of limitations that
runs from the latest of “(1) the date on which the
judgment of conviction becomes final, ” or “the
date on which the right asserted was initially recognized by
the Supreme Court, if right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review, ” or “the date on which the
facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.”

The
defendant filed this petition nearly five years after Judge
Clevert entered the judgment of conviction. Amendment 790 to
the U.S. Sentencing Guidelines went into effect on November
1, 2015. See U.S.S.G. Suppl. to App'x C, Amend.
790. Thus, the amendment became effective sixteen months
before the defendant filed this petition. Whether one
considers the triggering event the date of the judgment or
the date that Amendment 790 went into effect[2], the defendant
filed this petition too late.

To
avoid that problem, the defendant goes to lengths to call his
petition something other than a §2255 petition. He
insists that it is a petition for a writ of audita
querela. Naming his petition something other than a
§2255 petition does not solve the defendant's
statute of limitations problem. In 2004, the Seventh Circuit
rejected this effort to get around the §2255
requirements by using different captioning. In Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004), the
petitioner styled his request as a petition for a writ of
auditaquerela. Id. at 856. The Seventh
Circuit explained,

The ancient writ of audita querela, long ago
abolished in federal civil proceedings, see Fed.R.Civ.P.
60(b), has no apparent relevant to criminal sentences.
Black's Law Dictionary 126 (7th ed. 1999),
describes it as a “writ available to a judgment debtor
who seeks a rehearing of a matter on grounds of newly
discovered evidence or newly existing legal defenses.”
[The defendant] is not a judgment debtor, and the territory
of new facts and law is occupied for civil matters by Rule
60(b) and for criminal matters by Fed. R. Crim. P. 33 plus
§ 2255.

The
defendant has filed an untimely §2255 petition, and
seeks to avoid the statute of limitations by what the Seventh
Circuit has called “inventive captioning.” The
court must dismiss his petition as untimely.

Because
the court must dismiss the defendant's petition as
untimely, the court need not reach his request that the ...

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